Werner Samuel Vuillemin v Oversea-Chinese Banking Corp Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 30 November 2016
• Neutral Citation: [2016] SGHC 265
• Plaintiff Counsel: Plaintiff in person
• Date: 30 November 2016
• Docket Number: HC/Originating Summons No 786 of 2016 (HC/Summons No 5188 of 2016)
• Hearing Date: 16 November 2016,18 October 2016
• Subject Matter: Appeals,Civil Procedure
• Published date: 21 December 2016
• Defendant Counsel: Adrian Wong, Jansen Chow and Ang Leong Hao (Rajah & Tann Singapore LLP)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 265
• Year: 2016

Woo Bih Li J: Introduction

The plaintiff, Werner Samuel Vuillemin (“V”) is a customer of the defendant, Oversea-Chinese Banking Corporation Limited (“the Bank”). V’s main claim against the Bank is in his action in the State Courts of the Republic of Singapore which he has filed. This is District Court Suit No 3051 of 2013 (“DC 3051”).

In DC 3051, V claims an order for delivery by the Bank to him of contents kept in V’s safe deposit box (“the Box”) that was located in a branch of the Bank at Specialist Shopping Centre, which was recently re-developed.

V also claims, “[a] Court order that the Defendants are responsible and/or liable to the Plaintiff for any mishandling of the [Box] contents and of the whole break into proceedings of the [Box] and all triggered through the Defendants’ breaking into the [Box] and into the receptacle”; damages, interest and costs.

As V is a foreign national with no permanent presence and no assets in Singapore aside from the contents in the Box, the Bank applied for security for costs against him. On 17 March 2016, an order was made by a Deputy Registrar for him to provide $7,000 as security for the Bank’s costs up till the exchange of affidavits of evidence-in-chief (“AEICs”) (“the SFC Order”). On 30 March 2016, V filed an appeal, District Court Registrar’s Appeal No 23 of 2016 (“RA 23”), which was heard by a District Judge (“DJ”) and dismissed on 9 May 2016 (“the Appeal Dismissal Order”).

On 22 July 2016, V paid $7,000 as security for the Bank’s costs. On 3 August 2016, however, V filed Originating Summons No 786 of 2016 (“the Present OS”) in the High Court of the Republic of Singapore to seek an extension of time to appeal against the Appeal Dismissal Order dated 9 May 2016. On 18 October 2016, I heard his application for an extension of time and dismissed it with costs. Subsequently, V filed High Court Summons No 5188 of 2016 (“SUM 5188”) on 25 October 2016 for leave to appeal against my earlier decision. On 16 November 2016, I heard SUM 5188 and dismissed it with costs as well. I set out my reasons in respect of both my decisions below.

The court’s decision on the Present OS

The SFC Order dated 17 March 2016 specified that security was to be provided within 14 days. It was an “unless order”, ie, if V failed to provide the security within the stipulated time, his action would be struck out.

On 30 March 2016, V took two steps: first, he filed an application for an extension of time to provide the security, ie, he asked for four weeks to do so from the date an order was made on his application, assuming his application was successful; and secondly, he also filed RA 23 against the SFC Order dated 17 March 2016.

As mentioned, his appeal in RA 23 was dismissed by the Appeal Dismissal Order dated 9 May 2016. Under O 55C r 1(4) of the Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC”), any appeal by V from the Appeal Dismissal Order to a judge of the High Court had to be filed within 14 days from 9 May 2016, ie, by 23 May 2016 assuming that no leave to appeal was required.

V did not file his appeal by 23 May 2016. He said that he left Singapore on 11 May 2016 and returned only on 8 June 2016. The rest of my Grounds of Decision will proceed on the assumption that he did not require leave to appeal against the Appeal Dismissal Order.

On 21 June 2016, V’s appeal for an extension of time to provide the security was dismissed. On 22 June 2016, default judgment was entered against V, ie, his action, DC 3051, was dismissed because he failed to provide the security for costs.

V appealed against the decision which dismissed his application for an extension of time to provide the security for costs. His appeal was allowed on or about 15 July 2016 in that he was granted an extension of time till 22 July 2016 to provide the security. If he did so, the default judgment would be set aside without further order.

V eventually provided the security on 22 July 2016 by paying $7,000 into court.

On 29 July 2016, V attempted to file an application in the State Courts for an extension of time to appeal against the Appeal Dismissal Order. The application was rejected because it was “made out of time and should be heard in the High Court”, and that V was “to file the application in the High Court”.

Hence, on 3 August 2016, V filed the Present OS in the High Court for an extension of time to appeal against the Appeal Dismissal Order.

The principles for granting an extension of time are not in dispute. Four factors are to be considered (see Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757 at [18]): the length of the delay; the reasons for the delay; the chances of the appeal succeeding if the extension of time were granted; and the prejudice caused to the would-be respondent if an extension of time were granted.

Length of delay

By 3 August 2016, V was out of time by more than two months, since any appeal was to have been filed by 23 May 2016. Even if the date of 29 July 2016 were used, since that was the date when he first attempted to file the application for an extension of time to appeal against the Appeal Dismissal Order, he was still out of time by more than two months.

Reasons for delay

V alleged that he was not aware that he could appeal against the Appeal Dismissal Order. He did not have time to think or seek advice about that order which was made on 9 May 2016 as he had left Singapore on 11 May 2016 and returned only on 8 June 2016. It was close to 21 June 2016 (when his application for an extension of time to furnish security was dismissed) that he learned that he could appeal against the Appeal Dismissal Order. Even then he was busy filing an appeal against the decision refusing to grant him an extension of time to provide the security, and making efforts to provide the security of $7,000.

I doubted the genuineness of his reasons. When V was ordered by the court on 17 March 2016 to furnish security of $7,000 within 14 days, he knew enough to take the two steps on 30 March 2016 (see [7] above). One was to apply for an extension of time to provide the security. The other was to appeal against the decision requiring him to provide the security. Yet he alleged that when the Appeal Dismissal Order was made, he did not know he could appeal against that decision. In my view, that was not likely in the circumstances. Either he had a copy of the ROC which he could read for himself or he was consulting a solicitor in Singapore, or both, all along. That was how he came to take the two steps on 30 March 2016.

The fact that V was away from Singapore between 11 May 2016 and 8 June 2016 was not particularly disadvantageous to him. With modern means of communication and modern means of access to information, he could have used the time to find out very quickly about whether and when he had to file an appeal against the Appeal Dismissal Order.

V deposed that after he returned to Singapore on 8 (or 9) June 2016, he tried to get a solicitor to furnish an undertaking for the security for costs.¹ In my view, he could have used that time to find out quickly whether and when he had to file an appeal against the Appeal Dismissal Order.

Furthermore, if it was true that V learned what he had to do only on 21 June 2016, then he should have applied immediately for an extension of time to appeal against the Appeal Dismissal Order. He did not do so. He suggested that he was distracted because he had been focussing on appealing against the other order which was made on 21 June 2016, ie, the order which dismissed his application for an extension of time to provide the security (see [10] above).

In my view, the situation was of V’s own making. He need not have taken the two steps on 30 March 2016 (see [7] above). He could and should have combined both steps into one, ie, he could and should have simply filed one appeal against the SFC Order. In that appeal, he could and should have asked for that order to be set aside or, alternatively, for more time to furnish the security and, also, to delete the “unless order”.

Furthermore, having taken two steps on 30 March 2016 (see...